Written permission of the Community Alliance for Special Education (CASE) and Protection and
Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special
Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time
of publication. Federal and state special education law can change at any time. If there is
any question about the continued validity of any information in the handbook, contact
CASE, PAI or a legal authority in your community.

Community Alliance for Special Education (CASE), provides legal support, representation,
technical assistance consultations, and training to parents throughout the greater San Francisco
Bay Area whose children need appropriate special education services. Trained advocates and
attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings.
CASE also provides free consultations about special education rights and services to parents and
professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children
with disabilities who need or may need special education services. For more information, contact:

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal,
civil and service rights of Californians who have developmental or mental disabilities. PAI
provides a variety of advocacy services, including information and referral, technical assistance,
and direct representation. For information or assistance with an immediate problem, call:

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and
the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings,
recommendations or conclusions expressed in this publication are those of the authors and do not
necessarily reflect the views of the organizations which fund PAI.

On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by
Congress and signed into law by President Clinton. Most of the new provisions in IDEA became
effective on that date. Community Alliance for Special Education (CASE) and Protection &
Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh
Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these
IDEA amendments take precedence over any prior inconsistent federal law or current state law,
except where state law provides more protections or at least the same level of protections. In
this edition of SERR, citations of federal law refer to the section numbers where these
amendments appear in federal law at Title 20 of the United States Code. Citations of federal
regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal
Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new
federal regulations are supposed to be issued by July 1, 1998. However, this process may take
longer. In addition, California special education law and implementing regulations will also be
amended once federal regulations are issued. CASE and PAI will monitor the development of
these final federal regulations, and state law and regulations, so that final federal and state laws
and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of
the IDEA amendments do not become effective until July 1, 1998.Since IEPs written for the
1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to
include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that
this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or
clarification about IDEA implementation, please contact CASE or PAI.

SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 1

Information on Basic Rights and Responsibilities

Special education programs in California are governed by a combination of state and federal laws.
Under these laws, school districts must provide each student with a disability with a free
appropriate public education (FAPE). FAPE means special education and related services which
are provided at public expense and without charge, meet appropriate standards, include preschool
through secondary education, and conform with an Individual Education Program (IEP). [Title 20
United States Code (U.S.C.) Sec. 1401(8); Title 34, Code of Federal Regulations (C.F.R.) Sec.
300.4.] Special education must be provided in the least restrictive environment, which means that
to the maximum extent appropriate all students with disabilities will be educated with students
who are not disabled. [34 C.F.R. Sec. 300.550(b)(1)(2).]

1. I hear a lot about federal law and state law, and federal and state regulations. What's the
difference?

The U.S. Congress enacted Public Law 94-142, now called the Individuals with Disabilities
Education Act (IDEA) [20 U.S.C. Secs. 1400 and following] in 1975. California has also enacted
its own statutes which generally parallel the IDEA and provide the basis for providing services in
this state. [California Education Code (Cal. Ed. Code) Secs. 56000 and following.]

The federal law and state law contain most of the provisions governing delivery of special
education and related services. However, sometimes the law is unclear or leaves something out.
Where this has happened, both the Federal and State Departments of Education have created
regulations under the authority of the IDEA or state law. The federal regulations are at Title 34,
Code of Federal Regulations (C.F.R.) Part 300, and the state regulations are at Title 5, California
Code of Regulations (Cal. Code Regs.), Secs. 3000 and following.

Federal law and regulations create the broad framework within which California must function as
a recipient of federal funds under the IDEA. Since California has enacted its own statutes and
regulations, these generally will be followed in providing special education in the state. However,
because of the Supremacy Clause of the U.S. Constitution, federal law and regulations must be
followed whenever there isa conflict between state and federal law, except when the state
law grantsmore rights to the individual.

2. Who is eligible for services under the Individuals with Disabilities Education Act
(IDEA)?

Eligibility for special education services under IDEA:

Children who have a disability that causes them to need specialized educational services to benefit
from their education are entitled to receive special education and related services. Eligible
disabilities include but are not limited to sensory (i.e., hearing, visual, or speech/language) or
orthopedically impaired, mentally retarded, seriously emotionally disturbed, other health impaired
or children with specific learning disabilities (e.g., dyslexia, if it is a significant impediment to
learning). In addition, children with autism and traumatic brain injury are eligible for special
education under federal law. [20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.7.] California calls
these children "individuals with exceptional needs." [Cal. Ed. Code Sec. 56026.]

Children meeting these criteria between the ages of five years and 18 years, inclusive, are eligible
for special education. [Cal. Ed. Code Sec. 56026(c)(3).] Individuals between 19 and 21, inclusive,
who are enrolled in or are eligible for a special education program prior to their 19th birthday, and
who have not completed their prescribed course of study (or who have not met prescribed
proficiency standards), are eligible for special education.

3. What are the eligibility criteria for preschool children?

Preschool children between the ages of three to five years, inclusive, are eligible for special
education under Cal. Ed. Code Sec. 56441.11 if the child:

(1) Has one of the following disabling conditions:

(A) Autism

(B) Deaf-blindness

(C) Deafness

(D) Hearing impairment

(E) Mental retardation

(F) Multiple disabilities

(G) Orthopedic impairment

(H) Other health impairment

(I) Serious emotional disturbance

(J) Specific learning disability

(K) Speech or language impairment in one or more of voice, fluency, language, and articulation

(L) Traumatic brain injury

(M) Visual impairment

(N) Established medical disability

Conditions A through M are defined in Section 300.7 of the Code of Federal Regulations, and
further criteria regarding each condition is contained in Title 5, California Code of Regulations
Section 3030.

Condition N, "established medical disability," is defined as a disabling medical condition or
congenital syndrome that the individualized education program team determines has a high
predictability of requiring special education and services.

(2) Needs specially designed instruction or services as defined in Sections 56441.2 and 56441.3.

(3) Has needs that cannot be met with modification of a regular environment in the home or
school, or both, without ongoing monitoring or support as determined by an individualized
education program team pursuant to Section 56431.

(4) When standardized tests are considered invalid for children between the ages of three and five
years, alternative means, for example, scales, instruments, observations, and interviews shall be
used as specified in the assessment plan.

(5) A child is not eligible for special education and services if the child does not otherwise meet
the eligibility criteria and his or her educational needs are due primarily to:

4. Are there educational programs for children under three years of age?

Early educational opportunities are available to infants and toddlers less than three years of age
who have low incidence disabilities (blind, deaf, or orthopedic impairments who are not eligible
for regional center services) or who are developmentally delayed or at risk of such delay. [Public
Law 105-17/Part C and Cal. Gov. Code 95000, et seq.]

Regional centers are the responsible lead agencies for infants and toddlers who are
developmentally delayed or at risk of delay while local education agencies have responsibility for
those who have solely low incidence disabilities.

Special education students may continue to be eligible for special education services until they
turn 22 (and for a number of months beyond) depending on a number of factors, such as whether
they have passed the district's regular proficiency standards, or individualized differential
proficiency standards which may have been included in their IEP. See Chapter 3, Information on
Eligibility Criteria. But how long a student continues to be eligible for special education after his
22nd birthday depends on the month in which he was born. Students born in January through June
may finish out the fiscal school year and any extended school year program. Students born in
September may not start a new fiscal year, but, if they are on a year-round school program and
are completing their IEPs in a term that extends into the new fiscal year, they may complete that
term. The law does not mention students born in July or August, but the California Department of
Education (CDE) has indicated, and advocates would argue, that the rules applying to students
born in September should also apply to those born in July or August. A student born in October
through December is eligible for special education only through December 31 of the year in which
he turns 22, unless he would otherwise complete his IEP at the end of that current fiscal year orunless he has not had an individual transition plan incorporated into his IEP and implemented
from the age of 20 years forward, in which case the student will be able to complete that fiscal
year. [Cal. Ed. Code Sec. 56026.]

6. Who is eligible for educational program modifications under Section 504 of the
Rehabilitation Act of 1973?

A child who may have problems in learning may not be found eligible for special education
services because she does not fit into one of the special education eligibility categories and/or
because her learning problems are not severe enough to qualify the student for special education.
(This is often the case for children identified as being hyperactive or having dyslexia or Attention
Deficit Disorder, none of which automatically qualifies a student for special education under state
or federal law.) Such a child, however, may be eligible for special services and program
modifications under a federal anti-discrimination law designed to reasonably accommodate the
student's condition so that her needs are met as adequately as the needs of students without
disabilities. The law is commonly known as Section 504 of the Rehabilitation Act of 1973 [29
United States Code Sec. 794] and its implementing regulations at 34 Code of Federal Regulations
Sections 104.1 and following.

Section 504 eligibility is not based on a categorical analysis of disabilities (except that some
conditions, such as Attention Deficit Disorder, are frequently recognized as Section 504
qualifying conditions). Rather, Section 504 protections are available to students who can be
regarded in a functional sense as "handicapped," i.e., students who have a physical or mental
impairment which substantially limits a major life activity (such as learning), has a record of such
an impairment, or is regarded as having such an impairment. See 34 C.F.R. Sec. 104.3(j) for
further definition.

Whenever you make a referral for special education assessment, you should also request that your
child be assessed for eligibility for accommodations under Section 504. This way, if the child is
not found eligible for special education, she may still be able to obtain necessary services or
modifications under Section 504. You should also request that the district's Section 504
Coordinator be present at the initial IEP meeting to discuss the results of the Section 504
assessment. If your child is not found to be "handicapped" for purposes of Section 504
accommodations, that determination can be appealed. The local education agency is responsible
for arranging the Section 504 hearing process. The hearing officer selected by the local education
agency must be independent of the local agency but can be, for example, a special education
administrator from another school district, county office of education or special education local
plan area as long as there is no conflict of interest.

The Office of Civil Rights administers and enforces Section 504 protections in education. If you
believe your child has not been afforded her rights under Section 504, you may file a complaint
with the Office of Civil Rights at:

Special education means specially designed instruction, at no cost to the parent, to meet the
unique needs of a child with disabilities. This instruction can include classroom instruction, home
instruction, instruction in hospitals and institutions, and instruction in physical education. Special
education also includes vocational education. California law adds to the basic definition of special
education that the student with disabilities' educational needs cannot be met with modification of
the regular instructional program. [20 U.S.C. Sec. 1401(25); 34 C.F.R. Sec. 300.14; Cal. Ed.
Code Sec. 56031.]

8. Who is responsible for providing special education services to my child?

Your local school district is responsible for ensuring that appropriate special education services
are delivered. Services may actually be provided by a school district, special education local plan
area (SELPA), county office of education, state school or certified non-public school. If the
school district fails to ensure services, the CDE is ultimately responsible for providing your child
with educational services. [20 U.S.C. Sec. 1413(a)(1); 34 C.F.R. Sec. 300.220; Cal. Ed. Code
Secs. 56300 and following.

9. What are related services and who provides them?

Related services are supportive services the student requires in order to benefit from his special
education program. California calls related services Designated Instruction and Services (DIS).
[Cal. Ed. Code Sec. 56363; 5 Cal. Code Regs. Secs. 3051 and following.] It is important to
remember that education for children with disabilities includes independent living skills, not just
academics; therefore a broad range of related services may be required.

The term "related services" means transportation, and such developmental, corrective, and other
supportive services (including speech-language pathology and audiology, psychological services,
physical and occupational therapy, recreation, including therapeutic recreation, social work
services, orientation and mobility services, counseling services, including rehabilitation counseling,
and medical services, except that such medical services shall be for diagnostic and evaluation
purposes only) as may be required to assist a child with a disability to benefit from special
education, and includes the early identification and assessment of disabling conditions in children.
[20 U.S.C. Sec. 1401 (22); 34 C.F.R. Sec. 300.13.] Assistive technology devices and the services
necessary to assist a child in the selection, acquisition 1401(2); 34 C.F.R. Sec. 300.308.]

DIS mandated or use of an assistive technology device are made available to a child if required as
part of the child's special education or related services. [20 U.S.C. Sec. by California special
education law may include, but are not limited to, the following:

(1) Language and speech development and remediation;

(2) Audiological services;

(3) Orientation and mobility instruction;

(4) Instruction in the home or hospital;

(5) Adapted physical education;

(6) Physical and occupational therapy;

(7) Vision services;

(8) Specialized driver training instruction;

(9) Counseling and guidance;

(10) Psychological services other than assessment and development of the individualized
education program;

All related services must also be provided without any charge to the parent. In most cases, your
local school district is responsible for providing the related services directly or by contracting with
appropriate persons. Under California law, some related services, including occupational and
physical therapy and mental health services, are provided by other state agencies. [Cal. Gov. Code
Secs. 7570-7588.] However, if the other agency does not provide the services, and you can
successfully demonstrate to the IEP team or a due process hearing officer that the services are
necessary for the student to benefit from his education, the school district is responsible for
providing them. Disputes regarding related services are resolved through the fair hearing
procedures in the same fashion as disputes about any other part of your child's special education
program. See Chapter 5, Information on Related Services, and Chapter 9, Information on
Inter-Agency Responsibility for Related Services (AB 3632/882).

10. What is an "appropriate" special education program?

The U.S. Supreme Court issued a decision in the Rowley case which declares that under federal
law an "appropriate" educational program and placement is one which provides services to the
disabled student sufficient for her to obtain "educational benefit." It does not entitle the student to
the "best" possible educational program or a "potential maximizing" education. Specifically, in
Rowley the Court was considering a student with disabilities who was mainstreamed in regular
classes. For these students, the Rowley court said that educational benefit usually means that the
child is making passing grades and is being promoted from grade to grade. For students with
disabilities who do not attend classes in regular classrooms or in graded programs, the
determination of what is "educational benefit" is still being explored by the courts. Certainly, the
plan of instruction and placement should be likely to result in educational progress" not regression
or trivial educational advancement.

11. What does Least Restrictive Environment (LRE) mean?

Least Restrictive Environment (LRE) means that:

To the maximum extent appropriate, children with disabilities, including children in public or
private institutions or other care facilities, are educated with non-disabled children, and that
special classes, separate schooling or other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the disability is such that
education in regular classes with the use of supplementary aids and services cannot be achieved
satisfactorily. [20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.550(b)(1) & (2).]

State law provides that special education students be provided with "maximum interaction with
the general school population" as appropriate. [Cal. Ed. Code Sec. 56001(g).] Further, state
policy provides that special education students "should receive their education in chronologically
age appropriate environments with non-handicapped peers." [CDE, Office of Special Education,
Policy Statement on Least Restrictive Environment (October 10, 1986).] This means, for
example, that a 10-year-old student with disabilities should attend public school at a local
elementary campus with other non-disabled students of the same age. Depending on the student's
individual needs, he could be fully included in a regular classroom with support services,
mainstreamed, fully included in a regular classroom with support services, attend a special class or
be placed in a combination of both as appropriate.

This does not mean that all students must attend school at regular education campuses.
Depending on the student's individual needs, as documented by the IEP team, he may need to
receive educational programming at a special school, non-public school or residential facility.

Innovative and systematic efforts on the part of special and regular educators must be made to
promote positive interactions between students with disabilities (severely disabled and learning
disabled) and their non-disabled peers. See Chapter 7, Information on Least Restrictive
Environment.

12. What responsibilities do I have in providing special education to my child who has a
disability?

Both federal and state law were designed to give parents a voice in the fundamental decisions
regarding provision of special education and related services to their children with disabilities.
This includes a responsibility to be knowledgeable and concerned about the child's educational
needs and to participate in the procedures set forth in the laws. [20 U.S.C Sec. 1415 (b)(1); 34
C.F.R. Sec. 300.345.] When a child has no parent who can be identified or located, or where the
child is a ward of the state, the local education agency must assign a surrogate parent to fulfill this
role. [20 U.S.C Sec. 1415 (b)(2); 34 C.F.R. Sec. 300.514.]

13. How do I make a referral for special education services?

To refer your child for special education services, write a letter to your child's teacher, principal
or special education administrative office. Tell the school district that you are concerned about
your child's educational progress. Say that you are making a referral for assessment for special
education services. You may also want to let the district know that you are looking forward to
receiving an assessment plan within 15 days of the district's receipt of your letter. Keep a copy of
this request and any other correspondence with the school district. If you call to make a referral,
school district personnel must by law assist you to put your request in writing. If the school
district refers your child for special education, it is still critical that you follow up with your
own written request. Your written referral will ensure that assessment and IEP time lines will
begin. [Cal. Ed. Code Sec. 56029, 56302; 5 Cal. Code Regs. Sec. 3021.] See Sample Letterat the
end of this chapter.

14. How do I request an Individualized Education Program (IEP) and assessment for my
child when she is already receiving services?

If your child is already receiving special education services, you can request an IEP meeting
whenever you think one is needed in order to review or change the IEP. A written request can be
made to your child's teacher, principal or special education administrative office. [Cal. Ed. Code
Secs. 56343(c) and 56343.5.] You may request additional assessments for your child in the same
letter.

15. What are the time lines for the assessment and IEP meeting?

After an initial written referral to special education or a parent's written request for a new or
additional assessment of a child already receiving special education, the local education agency
has 15 days (not counting days between regular school sessions or terms or days of school
vacation in excess of five school days from the date of receipt of the referral) to provide parents
with a written proposed assessment plan containing a copy of the notice of parent rights. An
assessment plan must be developed within 10 days after commencement of a subsequent regular
school year or term for any student who was referred for special education assessment 10 days or
less prior to the end of the prior regular school year or term. [Cal. Ed. Code Sec. 56321(a).]
Parents have at least 15 days to determine whether they will consent to the proposed assessments.
[Cal. Ed. Code Sec. 56321(c).]

Starting from the date the local education agency receives the written consent to assessment, the
assessment(s) must be completed and the IEP developed at an IEP meeting within 50 days (not
counting days between regular school sessions or terms or days of school vacation in excess of
five school days from the date of receipt of the referral). [Cal. Ed. Code Sec. 56321(a).] If the
initial referral to special education is made 20 days or less prior to the end of the regular school
year, an IEP must be developed within 30 days after the commencement of the next school year.
[Cal. Ed. Code Sec. 56344.] See Assessment and IEP Time Lines Summary at the end of this
chapter.

If you are requesting an IEP meeting without the need for new assessments for a child already in
special education, the IEP meeting must be held within 30 days (not counting days between
school sessions or terms) from the date of receipt of your writtenrequest.[Cal. Ed. Code Sec.
56343.5.]

16. What rights do I have in the assessment and evaluation process?

Among the numerous rules applying to initial evaluations/assessments, and to assessments for
revision of an IEP, are:

(2) Evaluation is by a multidisciplinary team, and assessment is in allareas related to the child's
suspected disability including, where appropriate, vision, hearing, motor abilities, academic
abilities, self-help, mobility skills, career and vocational abilities and interest, and social and
emotional status. [34 C.F.R. Secs. 300.532(e),(f); Cal. Ed. Code Secs. 56320(e),(f).]

(3) Tests must be validated for the specific purpose used and be given by trained personnel.
Tests must accurately measure a child's aptitude or achievement and assess specific areas of
educational need rather than providing a single IQ and/or reflecting the child's impaired sensory,
manual or speaking skills. No single procedure or test is to be used for determining an appropriate
educational program for a child. [20 U.S.C. Sec. 1414 (b)(3)(B)(i); 34 C.F.R. Sec. 300.532(a)(2),
(a)(3), (b), (d); Cal. Ed. Code Secs. 56320(b), (c), (d), (e).]

(4) The assessments must be given in the student's native language and/or other mode of
communication. If this is not feasible an interpreter must be used. [20 U.S.C. Sec. 1414
(b)(3)(A)(ii) 34 C.F.R. Secs. 300.532(a)(1); Cal. Ed. Code Secs. 56320(b)(1); 5 Cal. Code Regs.
Secs. 3023.]

(6) The school must provide the parents a copy of the assessment findings if the parents request
one. It is best to request that a copy of the written assessment be sent to you before the IEP
meeting so that you can consider the results in planning for the meeting. [Cal. Ed. Code Sec.
56329.]

(7) If you disagree with the assessment, you can either challenge it through the fair hearing
procedure or obtain an independentassessment. An independent assessment must be
considered by the district when it makes any decisions about the student. The district, upon
request, must pay for the cost of the private assessment unless it can show, through a hearing
which it requests, that the district's assessment was accurate, complete and met the legal
requirements described above. [20 U.S.C. Sec. 1415 (b)(1) 34 C.F.R. Sec. 300.503; Cal. Ed.
Code Sec. 56329.]

(8) A complete reevaluation must be completed at least every three years and more frequently if
requested by either a parent or the student's teacher. Reevaluations in one particular area or
evaluation in a new area must also be done at a parent or teacher's request. [20 U.S.C. Sec. 1414
(a)(2); 34 C.F.R. Sec. 300.534.] See Chapter 2, Information on Evaluations/Assessments.

(9) A copy of a notice of parent rights must be attached to the assessment plan. The notice must
explain all of the procedural rights of a special education student under federal and state special
education law and include information on the procedures for requesting an informal meeting,
pre-hearing mediation conference, mediation conference, or due process hearing, the time lines for
completing each process, whether the process is optional, and the type of representative who may
be invited to participate. [Cal. Ed. Code Sec. 56321(a).] See Chapter 6, Information on Due
Process Hearings/Compliance Complaints.

17. What is an IEP and how is it developed?

An IEP is an Individualized Education Program, which sets forth in writing the educational
program for the student. The IEP is developed at an IEP meeting by a team of people which must
include the parent/s, a special education teacher, a regular education teacher if appropriate, a
district representative or school administrator and the student if appropriate. If the IEP meeting is
being held following an assessment, a member of the assessment team must participate. Other
people who may participate are a therapist, a nurse and anyone else selected by either the parent
or the district. [20 U.S.C. Sec. 1414 (d)(1)(B); 34 C.F.R. Sec. 300.344; Cal. Ed. Code Sec.
56341.]

Under federal and/or state law, the Individualized Education Program (IEP) for each student with
disabilities must include:

(1) The student's present levels of educational performance, including how the child's disability
affects the child's involvement and progress in the general curriculum. For preschoolers, present
levels must include how the disability affects the child's participation in appropriate activities.

(2) A statement of measurable annualgoals, including benchmarks or short-term
objectives, related to:

(a) meeting the child's needs that results from the child's disability to enable the child to be
involved in and progress in the general curriculum, and

(b) meeting each of the child's other educational needs that result from the child's disability.

(3) A statement of: specific special education services (including, for example, physical
education, vocational education, extended school year, instruction in academic or perceptual
areas, teacher qualifications, class size, etc.; specific related services including the amount of
time, frequency, and location for each service (for example, occupational therapy two times a
week/45 minute sessions at the school site); supplementary aids and services ( for example,
instructional aides, note takers, use of the resource room, etc.); and program modifications or
supports for school personnel (for example, modifications to the regular class curriculum, use of
computer-assisted devices, special education training for the regular teacher, etc.) to be provided
to the child, on behalf of the child, or for the childto advance appropriately toward
attaining the annual goals; to be involved and progress in the general curriculum and to
participate in extracurricular and other nonacademic activities; and, to be educated and
participate with other children with disabilities and nondisabled children.

(4) An explanation of the extent, if any, to which the child will not participate with
nondisabled children in the regular class and documentation that indicates why the student's
disability prevents his or her needs from being met in a less restrictive environment even with the
use of supplementary aids and services.

(5) The projected date for initiation and the anticipated duration, frequency, and location of
the servicesand modifications included in the IEP.

(6) A statement ofany individual modifications in the administration of State or district-wide
assessments of student achievement that are needed in order for the child to participate in the
assessment.

(7)Appropriate objective criteria, evaluation procedures and schedules for determining, at
least annually, whether the measurable goals contained in the IEP are being achieved and the
extent to which that progress is sufficient to enable the child to achieve the goals by the end of the
year. Progress reports/report cards must be provided at least as often as parents are informed of
their nondisabled children's progress.

(8) A description of the type of placement needed to implement the IEP in the least restrictive
environment. The school district must ensure that a continuum of alternative placements is
available, including instruction in regular classes (with an aide or other adaptations if necessary),
special classes, non-public nonsectarian schools, state special schools, residential placement, home
instruction, and instruction in hospitals and institutions.

(9) For students 16 years of age or older, the IEP must state the transition services needed,
including, if appropriate, a statement of the interagency responsibilities or any needed linkages.
Transition services are "a coordinated set of activities for a student ... which promotes movement
from school to post-school activities... The activities shall include instruction, community
experiences, the development of employment and other post-school living objectives, and, when
appropriate, acquisition of daily living skills and functional vocational evaluation."

(10) For each student, beginning at age 14 and younger, if appropriate, the IEP must include a
statement of the transition service needs of the student. Statement/s should relate to those
sections of the IEP that focus on the student's courses of study (such as participation in
advanced-placement courses or a vocational education program).

(11) Extended school year services, when needed.

(12) One year before the student turns 18, include a statement that the student has been
informed of his or her special education rights that will transfer to the student at age 18.

You should be aware of these basic rights in the IEP process, including the rights to:

(1) Receive written notice in your native language of the time, location and participants in the
meeting and have the meeting scheduled at a mutually agreed upon time and place. [34 C.F.R.
Sec. 300.345(a)(1), (2).] It should be noted that if you refuse to attend a properly scheduled IEP
meeting, the local agency may conduct the meeting without you. However, the district must take
steps to insure parent participation -- such as conference calls or holding the meetings at
after-hours times when you can attend. [34 C.F.R. Sec. 300.345(d).]

(2) Attend the meeting and be accompanied by other persons (including a representative, who
may be an attorney). [20 U.S.C. Sec. 1414 (d)(1)(B)(vi); 34 C.F.R. Sec. 300.344(a)(3).]
Whenever appropriate, the student may also attend and participate. [20 U.S.C. Sec. 1414
(d)(1)(B)(vii); 34 C.F.R. Sec. 300.34(a)(4).]

(3) Present information to the IEP team and participate equally in the development of the IEP.
[20 U.S.C. Sec. 1414 (d)(3)(A)(i); 34 C.F.R. Part 300 Appendix C, No. 26.

(4) Have language or sign interpreter present if needed for the parent to participate in the
meeting. [34 C.F.R. Sec. 300.345.]

(5) Obtain a copy of the IEP, on request. [34 C.F.R. Sec. 300.345(f).]

19. What happens if I don't agree with all or part of the IEP? What are my options?

Under California law, a student with disabilities is not allowed to participate in any part of a
special education program without written parental consent to the IEP. If you do not agree with
an IEP, you can refuse to sign it altogether, or you can consent only to the parts with which you
agree and specifically state your disagreement with other parts. In the latter case, only those
components of the IEP to which you have consented will be implemented. Any parts of the IEP to
which you have not consented may become the basis for a Due Process Fair Hearing. [Cal. Ed.
Code Sec. 56346.] In addition to a due process fair hearing, several other dispute resolution
mechanisms exist but are at your option. See Chapter 6, Information on Due Process
Hearings/Compliance Complaints.

Federal law makes it clear that the local agency may initiate a Due Process Hearing to attempt to
override your consent to initial placement. State law provides the local agency the same option
with respect to portions of the IEP to which you have not consented. [34 C.F.R. Sec. 300.506(a);
Cal. Ed. Code Sec. 56501(a).]

20. I agreed with the IEP when it was written, but I no longer think it is appropriate. What
can I do?

If you are convinced your child's IEP is no longer appropriate, you can request a new IEP
meeting. In particularly serious cases, you have the option under federal law of revoking your
consent to the IEP. [34 C.F.R. Sec. 300.500.] It is unclear, however, if revocation of consent
after implementation of the new IEP will result in implementation of the previous IEP. See
Chapter 4, Information on IEP Process, Question 24.

21. I've been to the IEP meeting, but the school and I cannot agree on the special
education, related services or placement my child needs. How can I resolve this difference
of opinion?

If you have reached the point where further negotiation is fruitless and you believe the local
agency is not providing your child a free appropriate public education, you may file for a Due
Process Fair Hearing. [Cal. Ed. Code Secs. 56501 and 56502.] Common examples of this
situation are the school district's refusal to include an important service in the IEP or a placement
for your child where he can be integrated with non-disabled students. To request a hearing write
to the address below and send a copy to your child's school district.

Under federal law, your child will remain in her current educational placement and have her
current IEP fully implemented (including all related services) from the time you request a
hearing until the Due Process Hearing proceedings (and judicial proceedings, if any) are
completed. This "status quo" can be altered only if you and the local education agency agree to a
change in placement or services. [20 U.S.C. Sec. 1415 (j); 34 C.F.R. Sec. 300.315; Cal. Ed. Code
Sec. 56505(d).] This may not be true, however, if you elect to utilize one of the optional
dispute resolution mechanisms described more fully in Chapter 6, Information on Due
Process Hearings/Compliance Complaints.

If you are very dissatisfied with the school district program or services, you may choose
unilaterally to place your child in a non-public school or to purchase additional services. Should
the hearing officer (or a court) later determine that such placement or services are appropriate, the
district will be responsible for reimbursing you for the cost of the placement or services.

23. What rights do I have in the hearing process?

It is important to note that parents have many rights in the hearing process, including the right to:

(2) After filing for a due process hearing, and as long as both parties agree, attend a Mediation
Conference, which is an informal meeting held between the parent, district and a state mediator in
an attempt to negotiate a resolution to the dispute. During the time of this mediation process, the
student is entitled to remain in his current school placement and an attorney may represent any of
the parties to the mediation. [20 U.S.C. Sec. 1415 (e); Cal. Ed. Code Sec. 56501(b)(2) and
56503.] The parents and district may also participate in a mediation session before filing for a due
process hearing. [See Cal. Ed. Code Sec. 56500.3]. At this mediation, however, no attorneys or
other independent contractor legal advocates may participate on behalf of any party. And, because
this mediation process takes place before filing for a due process hearing, the district may not
believe it is obligated to maintain the student in his current educational placement.

(3) Have the hearing held at a time and place reasonably convenient to the parent and child.
[Cal. Ed. Code Sec. 56505(b).] Continuances can be obtained upon a showing of good cause.
[Cal. Ed. Code Sec. 56505(g).] The parent also has the rights to have the child attend the hearing
and to have the hearing open or closed to the public, if desired. [34 C.F.R. Sec. 300.508; Cal. Ed.
Code Sec. 56501(b).]

(5) Be represented by an attorney or advocate. [20 U.S.C. Sec. 1415 (h)(1); 34 C.F.R. Sec.
300.508(a)(1).] If either party uses an attorney, that party must notify the other party in writing
10 days before the hearing. [Cal. Ed. Code Sec. 56507.]

(7) Prohibit the introduction at the hearing of any evidence which has not been disclosed at
least 5 days before the hearing. [20 U.S.C. Sec. 1415 (f)(2)(B); Cal. Ed. Code Sec. 56505(e)(6).]

(8) Obtain a written, reasoned decision containing findings of fact. The completed decision must
be mailed to all parties within 45 days after the request for the hearing is received. [20 U.S.C.
Sec. 1415 (h)(4); Cal. Ed. Code Sec. 56505(g); 34 C.F.R. Sec. 300.508(a)(5).]

If you are successful at the due process hearing or in court (the prevailing party), and you were
represented by an attorney, the attorney's fees and the costs of pursuing the case may have to be
paid by the public education agency. [20 U.S.C. Sec. 1415 (i)(3)(B).]

The Due Process Hearing Decision is the final administrative determination, and is binding on
both sides. [Cal. Ed. Code Sec. 56505(h).] A party who disagrees with the hearing decision can
bring an action in state or federal court seeking review of the decision. The action in state or
federal court seeking review of the decision must be filed within 90 days of the date of
receipt of the decision.[20 U.S.C. Sec. 1415 (i); 34 C.F.R. Sec. 300.511; Cal. Ed. Code Sec.
56505(i).] See Chapter 6, Information on Due Process Hearings/ Compliance Complaints.

24. I think the local education agency is violating special education law. What can I do?

If you believe the local agency has not followed the terms of an IEP or has violated special
education laws, or has discriminated and the student is at risk of suffering some immediate loss of
benefit as a result of the discrimination, you may file a complaint with the Compliance
Management and Mediation Unit . [5 Cal. Code Regs. Sec. 4600 and following.] Some
complaints may be filed first with the local education agency and some will be referred back to the
local education agency by the Compliance Unit, but most issues arising under special education
and IEP implementation may be filed directly with the State. [20 U.S.C. Sec. 1415 (b)(6); 5 Cal.
Code of Regs. Sec. 4650.] The complaint procedure is covered in greater depth in Chapter 6,
Information on Due Process Hearings/Compliance Complaints. To file a complaint, write to the
following address and send a copy to your school district.

Compliance Management and Mediation Unit

Special Education Division

California Department of Education

515 L Street, Suite 270

Sacramento, CA 95814

25. Does my child have the right to participate in non-academic and extracurricular
activities offered at his school?

Yes. School districts must take steps to provide nonacademic and extracurricular services and
activities in such manner as is necessary to afford children with disabilities an equal opportunity
for participation. [34 C.F.R. Sec. 300.306(a).] Such activities include athletics, recreational
activities, special interest groups or clubs and employment of students, including employment by
the school and assistance in making outside employment available. [34 C.F.R. Sec. 300.306(b).]
In addition, in arranging for the provision of such services, lunch and recess, the school district
shall ensure that children with disabilities participate with non-disabled children to the maximum
extent appropriate. [34 C.F.R. Sec. 300.553.]

26. How do I find out if my child is entitled to an extended school year or summer school
program?

Special education and related services shall be provided on an extended year basis for students
with disabilities whose unique needs require services in excess of the regular academic year. The
IEP team makes the determination of whether a child needs such a program and should consider
as factors whether the child's disabilities are likely to continue indefinitely or for a prolonged
period, or if interruption of her educational programming may cause regression and, coupled with
limited recoupment capacity, render it impossible or unlikely that she will attain the level of
self-sufficiency and independence that would otherwise be expected in view of her disabling
condition. The lack of clear evidence of such factors may not be used to deny extended year
services if the IEP team determines the need for an extended year program and includes the
services in an IEP. The special education and related services offered during the extended year
must be comparable in standards, scope and quality to the program offered during the regular
academic year. If the IEP team recommends extended year services, the recommendation should
be written into the IEP. [5 Cal. Code Regs. Sec. 3043.]

27. Can I see the records that the school keeps on my child?

Yes. You or your child's representative have the right to inspect, review and get copies of all
education records relating to your child which are collected, maintained or used by the local
agency [20 U.S.C. Sec. 1415 (b)(1); Cal. Ed. Code Sec. 49069.]. For most special education
students, school districts keep both a special education file and a cumulative file (general regular
education information). You have the right to have access to both these files. You may need to
remind your district to provide all educational records concerning your child to you no matter
where they are located. See Sample Letter at the end of this chapter.

In addition, the local agency must: explain and interpret records on request; and provide you the
opportunity to request correction or removal of information in the record you believe to be
inaccurate, misleading, an unsubstantiated personal conclusion or inference, a conclusion or
inference outside the observer's scope area of competence, not based on the personal observation
of a named person with the time and place of the observation noted, or in violation of the privacy
or other rights of your child. [Cal Ed. Code Sec. 49070(a).]

Under state law, the local agency must provide you with access to records, and copies as
requested, within 5 days after written or oral request. [Cal. Ed. Code Sec. 49069.] The local
agency can charge you at most the actual cost of copying the records, but must provide the copies
for free if the cost "effectively prevents the parent from exercising the right to receive such
copies." [34 C.F.R. Secs. 300.560 and following; Cal. Ed. Code Secs. 49065, 56504.]

28. How do I correct or remove information contained in my child's records?

To correct or remove information contained in your child's records, you can file a written request
with the superintendent of the school district. Within 30 days of the request, the superintendent
will meet with you and the school staff who recorded the disputed information, and either grant or
deny your request. If your request is denied, you have 30 days in which to appeal the denial in
writing to the governing board of the school district. When your request or appeal is denied you
have the right to submit a written statement of your objections to the information. The statement
will become part of your child's record until the information is corrected or removed. [Cal. Ed.
Code Sec. 49070(b)-(d).] An alternative way to correct or remove information from your child's
records is to file for a due process hearing. [34 C.F.R. 300.567.]

29. Under what circumstances may my child attend school in a school district other than
my district of residence?

There are three circumstances where an inter-district transfer may occur:

(1) If your district does not have an appropriate placement for implementation of the IEP, it may
contract with a neighboring district to enroll your child in a special education program. The
receiving district is not obligated to accept your child. Both districts must agree on funding
allocations, transportation, etc. [Cal. Ed. Code Sec. 56170.] These inter-district agreements
usually allow the receiving district to terminate the enrollment at the district's own discretion.

(2) The parent of an elementary school child may elect to have the child enrolled in the district
where either parent's employment is located. [Cal. Ed. Code Sec. 48204.] However, the district of
employment may refuse to enroll the child if the additional cost of educating the child exceeds the
amount of additional state aid received as a result of the transfer. This provision could form the
basis for refusal of a special education child.

(3) Any district may elect to accept non-resident students. This "receiving" district, however, will
not be required to create new programs for these students. Admission of non-resident students
must be a random, unbiased process that gives no consideration to academic or athletic skills.
There is no limit to the number of non-resident students the district can elect to accept, but under
no circumstances may resident students be displaced. Generally, the district of residence has no
right to prohibit the transfer. [Cal. Ed. Code Secs. 48209 and 48980.]

If an inter-district transfer is made under (2) or (3) above, transportation will be a parental
responsibility. Under any of the three options described above, the student's placement and right
to any upgrade of service is not as secure as in the district of residence.

30. What happens to my child's special education program if we move from one school
district to another?

Whenever a child transfers out of one school district into another that does not operate under the
same local plan, the new school district must immediately provide an interim placement, to last
not more than 30 days. Unless you agree otherwise, the interim placement must conform to an
IEP -- either the existing IEP implemented to the extent possible in the new district or a new IEP.
Within 30 days after the interim placement was made, the IEP team must review the interim
placement and make a final recommendation. The IEP team may use the records and reports from
the previous school district in making its recommendation. [Cal. Ed. Code Sec. 56325.]

31. What happens to my child's special education program if he is placed in a group or
foster home located in another school district?

In order to encourage communication and planning, before placing a child with a disability in a
group home or other residential facility, the placing agency (such as a regional center for the
developmentally disabled, the Department of Social Services or a court) must notify the
administrator of the special education local plan area in which the group home is located. The
administrator must provide the placing agency with information about the availability of an
appropriate special education program in the area. [Cal. Gov. Code Sec. 7579.] Thereafter, the
receiving school district is responsible for providing your child's special education program. See
Question 30.

32. Which district is responsible for my child's education program if she is placed in a
public hospital, psychiatric hospital or other residential medical facility?

Individuals with exceptional needs who are placed in a public hospital, state licensed children's
hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the
educational responsibility of the district, special education local plan area (SELPA), or county
office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.]

33. What happens to my child's special education program if he is being discharged from a
State Developmental Center (SDC) a state mental hospital or a medical hospital?

At least ten days prior to the discharge of a child who has had an active IEP from an SDC, mental
hospital or medical hospital, the operator of the facility must give notice of the discharge, in
writing, to the receiving special education local plan area. In addition, the operator must provide
the special education local plan area with information useful in implementing your child's IEP,
including a copy of the IEP and the name of the child's representative for educational and
placement issues. It is the responsibility of the receiving school district to ensure that your child
receives an appropriate educational placement that starts without delay upon her discharge. [Cal.
Gov. Code Sec. 7579.1.]

34. Under what circumstances could my child be suspended or expelled from school?

Students with disabilities are subject to the same suspension rules as non-disabled students, except
with regard to the length of suspension. Students may be suspended for up to five school days if
they violate certain provisions of the California Education Code. The district must give you
written notice of the suspension. The district must also give you and/or your child the right to
contest the evidence of the misconduct and the appropriateness of the suspension at a meeting
with school officials. Under certain circumstances, a non-disabled student can be suspended for a
period in excess of 30 days cumulatively per school year. Students with disabilities may be
suspended for up to ten days by the governing board of the school district if their presence at
school would be dangerous. Under federal law, a special education student may not be suspended
for more than ten consecutive days without parental consent. [20 U.S.C. Sec. 1415 (k), Cal. Ed.
Code Sec. 48911 (h); Doe v. Maher, EHLR 557:353, 361.]

Students with disabilities cannot be expelled from school for misconduct that is related to their
disability or if it is determined by the IEP team that the student was not appropriately placed at
the time of the misconduct. [20 U.S.C. Sec. 1415 (k)(4)(C)(ii); Cal. Ed. Code Sec. 48915.5; Doe
v. Maher, Education for the Handicapped Law Reporter (EHLR) 557:353, 359-60.] Because
expulsion is a significant change in placement, prior to expelling a student with disabilities from
school, the district must follow certain procedures including notice, assessment of the student and
convening an IEP team meeting to determine if the misconduct is related to the student's
disability. In analyzing whether the misconduct is related to the student's disability, the analysis
cannot be limited to the student's "identified" disability as Cal. Ed. Code Sec. 48915.5(a)(2)
indicates. A federal appellate case in California calls into question the validity of that portion of
the state statute when compared with federal law. [See Hacienda La Puente Unified School
District of Los Angeles v. Honig, 976 F.2d 487 (9th Cir., 1992).] In that case, the school district
had failed to identify all of the child's conditions and was attempting to expel the child because her
misbehavior was not related to the condition the district had identified the child as having. In
addition, a student who has not been found eligible for special education and who has engaged in
behavior that violated any school district rule or code of conduct, may assert any of the special
education protections and rights if the school district had knowledge that the student was a
student with a disability before the behavior that caused the disciplinary action occurred. [20
U.S.C. Sec. 1415 (k)(8)(A).]

If you or your child disagree with the IEP team decision, regarding relationship of the misconduct
to the child's disability or the appropriateness of the placement at the time of the misconduct, you
have a right to appeal the decision. Generally, a student has the right to remain in his current
placement during the pendency of the IEP meeting and any appeals, aside from the initial
suspension for the offense which may be up to ten days. However, there are exceptions to this
rule if the student is charged with certain categories of offenses involving weapons or drugs, in
which event the student may be placed in an alternative placement while expulsion proceedings
are pending. [20 U.S.C. Sec. 1415 (k) (1).] In addition, a Hearing Officer, upon application of a
district, may subject a student to alternative placement, pending expulsion proceedings, if he finds
that maintaining the current placement is substantially likely to result in injury to the child or
others. [20 U.S.C. Sec. 1415 (k) (2).]

If it is properly determined that the misconduct is not related to all the student's actual disabilities,
and that the student was appropriately placed at the time of the misconduct, the student is treated
the same as a student without any disability -- regular expulsion proceedings may be initiated.
[Doe v. Maher, EHLR 557:353, 360.] However, both state and federal law severely restrict the
expulsion of special education students. Even if a special education student meets the legal criteria
for expulsion, federal law requires that the student continue to receive a free appropriate public
education while expelled or suspended for a period in excess of ten days. Thus, unlike a regular
education student, a special education student does not suffer a cessation of educational services
during an expulsion, but may suffer a change of placement to an alternative setting which provides
all services required by the students's IEP. [20 U.S.C. Secs. 1412 (a (1)(A), 1415 (k).] See
Chapter 8, Information on Discipline of Students with Disabilities.

35. Under what circumstances can my child graduate with his nondisabled peers?

School districts are required to adopt differential proficiency standards for students enrolled in
special education and unable to meet the regular graduation requirements. The IEP team must
develop or modify these standards and include them in the IEP document. [Cal. Ed. Code Sec.
51215.] Special education students who meet the differential standards provided for by state law
should be permitted to participate in graduation ceremonies and receive diplomas. A district's
refusal to allow a student to participate in graduation or receive a diploma would be a violation of
state law and Section 504 of the Rehabilitation Act of 1973. Even if a special education student
did not or could not meet differential proficiency standards, he could participate in graduation
ceremonies as part of the mainstreaming requirement if specified in the IEP. The student would
not, however, be allowed to receive a diploma or certificate under state law. [Cal. Ed. Code Sec.
51412.]

36. What can I do if a teacher or other school staff person hurts my child?

If a child or group of children has been hurt, mistreated verbally and/or emotionally, or is in
immediate physical danger, or the health, safety or welfare of a child or group of children is
threatened, you may file a complaint with the CDE under the Uniform Complaint Procedure [5
Cal. Code Regs. Secs. 4600 and following]. The CDE must investigate your complaint. [5 Cal.
Code Regs. Secs. 4611(a) and 4650(a)(viii)(C).] See questions and answers regarding
Compliance Complaints in Chapter 6, Information on Due Process Hearings/Compliance
Complaints.

37. What rights do I have if English is not my first language or I do not speak any English?

Families who do not speak or write English as their primary language have the right to participate
fully in special education proceedings. These rights include:

(1) Receive written notice in your native language of the time, location, and participants in the
IEP meeting and have an interpreter present to enable you to participate fully in the IEP meeting.
[34 C.F.R. Sec. 300.345.]

(3) The right to obtain an independent evaluation at public expense when the assessment
conducted by the school district is incomplete or inappropriate (such as an assessment completed
without an interpreter). [20 U.S.C. Sec. 1415 (b)(1); 34 C.F.R. Sec. 300.503, Cal. Ed. Code Sec.
56329(b).]

(4) The right to have an interpreter present at mediation and a fair hearing. [5 Cal. Code Regs.
Sec. 3082(d).]

(5) Upon request, receive written information in your native language regarding the procedures
for filing a complaint with local child protective agencies against a school employee or other
person that commits an act of child abuse against your child at his school site. If oral information
is to be given, an interpreter must be provided. [20 U.S.C. Sec. 1415 (d)(2); Cal. Ed. Code Sec.
48987.]

38. What rights do I have if English is not my child's first language or if she does not speak
any English?

Your rights include:

(1) Assessments of your child's abilities and needs must be in her native language. If this is not
possible, an interpreter must be provided. The need for an interpreter does not mean completion
of the assessments can be delayed. [20 U.S.C. Sec. 1414 (3)(A)(ii); 34 C.F.R. Sec. 300.532(a)(1);
Cal. Ed. Code Sec. 56320(b)(1); 5 Cal. Code Regs. Sec.3023.]

(3) For students whose primary language is other than English, the IEP must include linguistically
appropriate goals, objectives, programs and services. The school district must provide special help
through a trained teacher to assist your child to learn English to the extent appropriate given her
disability and must provide special assistance to help your child meet her IEP goals even if she
does not speak sufficient English to understand everything her classmates do. This help must
continue until your child no longer has a barrier due to her English language skills. [20 U.S.C.
Sec. 1414 (d)(3)(B)(ii); 5 Cal. Code Regs. Sec. 2001(p); Cal. Ed. Code Sec. 56345(b)(4); 20
U.S.C. Sec. 703(f).]

(4) For students whose primary language is other than English, linguistically appropriate services
includes bilingual instruction. Bilingual instructional services can be provided by both special
education and bilingual education staff, as appropriate. The coordination of bilingual instructional
services should be described specifically and included in the students IEP. See Question 40 below.

39. Are my child's rights to a free, appropriate education affected if he is undocumented?

No. All children in the United States have the right to a free public school education in the school
district in which they live. If your child has a disability as discussed in these materials, then he is
entitled to special education services.

Immigrant children do not need a green card, visa, passport, social security number or any other
proof of citizenship or immigration status in order to register for school. You do not have to and
should not check with INS before sending your child to school. It is illegal for a school to require
you to do so.

It is also important that only those children who are in need of special education receive it.
Categorizing children whose English in incomplete or who have a different culture as "retarded"
or "mentally disabled" has been a common problem in the United States. As discussed above,
there are laws that require testing for a disability to take language and culture into consideration.

40. Why is it important to know about bilingual education programs if my child is in
special education programs?

Bilingual programs should be coordinated with special education services. Bilingual services
should not stop after the student qualifies for special education. Many students need both bilingual
and special education services. Here are some points to remember:

(1) Children must be tested in English upon enrollment. Then, the student is identified as either
Limited English Proficient (LEP) or Fluent in English Proficiency (FEP).

(2) LEP children are entitled to bilingual instruction which teaches in the native language and also
teaches English as a second language.

(3) Instructional services can be provided by both special education staff and bilingual education
staff as appropriate. These services should be described specifically and included in the student's
IEP.

(4) No bilingual student should be placed in special education solely because the student does not
speak English. However, LEP students should receive appropriate special education services if
needed.

For more information, contact the CDE, Language, Policy, and Leadership Office at (916)
657-2566.

41. My child's behavior problems are a major obstacle to her education. Is there anything
the school district must do to address my child's behavioral needs?

Yes. In May of 1993, the CDE issued new regulations which require school districts to assess
special education students who demonstrate serious behavior problems and to then develop and
implement a positive behavior intervention plan for each such student. The plan becomes part of
the student's IEP, has its own set of goals and objectives for replacement of targeted maladaptive
behaviors with socially acceptable alternative behaviors, and is reviewed regularly for its
effectiveness.

A serious behavior problem is one which is assaultive, self-injurious, or causes serious property
damage, or which is otherwise severe, pervasive, and maladaptive and has not been effectively
addressed with instructional/behavioral approaches specified in the IEP. The assessment, behavior
intervention plan development, implementation, and monitoring must be done by personnel
trained in behavior analysis with an emphasis on positive behavior intervention.

The behavior interventions used by the district must be those which respect the student's dignity
and privacy, assure his/her physical freedom, social interaction, and individual choice, help the
student learn to interact effectively socially, assure the student's access to education in the least
restrictive environment, and result in lasting positive behavioral change. The behavior
interventions used by the district may never be used simply to eliminate maladaptive behaviors;
behavior interventions may only be used to replace maladaptive behaviors with alternative
acceptable behaviors.

In addition, the behavior interventions used by the district cannot involve the infliction of pain or
trauma and cannot include verbal abuse, ridicule, humiliation, or the infliction of emotional
trauma. Moreover, these behavior interventions cannot include denial of adequate sleep, food,
water, shelter, bedding, comfort, or access to bathroom facilities. Nor can they include
impediments to adequate supervision of the student. Also specifically prohibited are interventions
which involve locked seclusion, toxic or unpleasant sprays or mists released in or near the
student's face, deprivation of one or more of the student's senses, and any device, material or
object which simultaneously immobilizes all four extremities (except that in unanticipated
emergency situations, prone containment may be used by trained staff for only that period of time
necessary to abate the emergency).

An assistive technology device is any item, piece of equipment, or product system -- whether
acquired commercially off the shelf, modified or customized -- that is used to increase, maintain or
improve the functional capabilities of children with disabilities. [20 U.S.C. Sec. 1401(1); 34
C.F.R. Sec. 300.5.]

OSEP policy letters and hearing decisions provide further clarification of the types of assistive
services and devices that fall within the scope of IDEA's mandate. Assistive devices that OSEP
found to be within IDEA's mandate include: Apple IIc computer; auditory training equipment;
computer assistance; computerized communication system; device for loading/unloading students
from a bus; and a $7,000 liberator communication device.

A 1978 Bureau of Education for the Handicapped policy letter concluded that individually
prescribed devices (such as glasses and hearing aids) are generally considered personal items and
not the responsibility of educational agencies to provide. It is not clear how or whether this
"related services exception" will be applied to assistive technology.

Federal law also specifically defines assistive technology services as any service that directly
assists a child with a disability in the selection, acquisition, or use of an assistive technology
device. [20 U.S.C. 1401(2).] Assistive technology services include:

(1) Evaluation of the needs of such child, including a functional evaluation of the child in the
child's customary environment;

(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices
by such child;

(4) Coordinating and using other therapies, interventions, or services with assistive technology
devices, such as those associated with existing education and rehabilitation plans and programs;

(5) Training or technical assistance for such child, or, where appropriate, the family of such child;
and

(6) Training or technical assistance for professionals (including individuals providing education
and rehabilitation services), employers, or other individuals who provide services to, employ, or
are otherwise substantially involved in the major life functions of such child. [20 U.S.C. Sec.
1401(2)(A-F); 34 C.F.R. 300.6.]

In addition, an IEP must consider whether a student with a disability requires assistive technology
devices and services. [20 U.S.C. Sec. 1414(d)(3)(B)(v).]

43. My child attends a religious school. Can she receive related services from the public
school system if she needs such services to benefit from education and the services are not
available at the religious school?

Federal law gives limited rights to children placed in private schools unilaterally by their parents.
The school district must provide for the participation of these students in the district's special
education programs. However, the amount of money spent on these students may be limited to
only a proportionate share (based on the number of these students there are in the district) of the
federal dollars received by the district. Currently, only about 8% of the dollars required to provide
special education are federal dollars. In a district with 1,000 children, 10 of whom are children
with disabilities enrolled in private schools unilaterally by their parents, a district would only have
to spend 1% of the 8% of its special education revenue on making provision for the participation
of these 10 students in its special education programs. Services may be provided on the premises
of private schools, even parochial schools "to the extent consistent with law." [20 U.S.C.
1412(a)(10)(A)(i).]

Sample Letter - Referral for Special Education

Ms. Bev Blue

Address

City, State, Zip Code

Telephone Number

Date

Mr. Gary Green

Director of Special Education

Local Unified School District

Address

City, State, Zip Code

Dear Mr. Green:

I am the parent of John Blue, who is currently enrolled at the Regular Elementary School in the
fifth grade. My child has not been doing well in school and I am concerned about his educational
progress.

I am writing to make a referral for assessment for special education services for John. He may be
eligible for special education assistance. I am requesting that John be given a comprehensive
assessment by the school district and that an IEP meeting be scheduled for him. [Optional: As
part of the assessment process, I also request that my child be assessed under Section 504 of the
Rehabilitation Act of 1973 to determine whether he should be identified as "handicapped"
pursuant to that law and to determine what, if any, accommodations might be required in his
educational program in the event that he does not qualify for special education services or in
addition to special education services. This is also to request that the Unified School District's
Section 504 Coordinator be present at the IEP meeting to discuss the results and
recommendations of the Section 504 assessment.]

I look forward to receiving an assessment plan within 15 days. If you have any questions, please
feel free to contact me. Thank you for your cooperation and assistance.

Sincerely,

Bev Blue

Sample Letter - Request for Records

Ms. Bev Blue

Address

City, State, Zip Code

Telephone Number

Date

Mr. Gary Green

Director of Special Education

Local Unified School District

Address

City, State, Zip Code

Dear Mr. Green:

I am the parent of John Blue, who is currently enrolled at the Regular Elementary School in the
fifth grade. An IEP meeting has been scheduled for John on June 8.

I would like to arrange a time to review my son's educational records (both his special education
file and cumulative file) at his school within the next five days. I would like to make copies of
some of his records at that time.

OR

I am writing to request that you provide copies of John's educational records for my review within
the next five days. I would like copies of both his cumulative file and his special education file.

I cannot afford to pay for the copies of his records. I will call you soon to make arrangements for
my school visit. (OR - Please send the records to my home address.) Thank you for your
cooperation.

Sincerely,

Bev Blue

Time Lines for Assessment and IEP

Child Referred for Assessment"Referral for assessment" means any written request for
assessment to identify an individual with exceptional needs made by a parent, teacher, or other
service provider.

The proposed assessment plan given to parents shall meet all the following requirements:

1. Be in language easily understood by the general public.

2. Be provided in the primary language of the parent or other mode of communication used by the
parent, unless to do so is clearly not feasible.

3. Explain each type of assessment instrument to be administered, the purpose of the instrument,
and the professional personnel responsible for the administration and interpretation of the
instrument.

4. Fully explain the facts which make an assessment necessary or desirable.

5. State that no educational placement will result from the assessment without the consent of the
parent.

6. Include a copy of the notice of parent rights which includes an explanation of all of the
procedural safeguards of state and federal special education law and of any optional dispute
resolution procedures under state law.

Parent must Give Written Consent to Conduct Assessments:

Parent Has 15 Calendar Days to Arrive at a DecisionWritten parental consent shall be
obtained before any assessment of the student is conducted unless the public education agency
prevails in a due process hearing relating to such assessment. The parent shall have at least 15
days from the receipt of the proposed assessment plan to arrive at a decision. Assessment may
begin immediately upon receipt of such consent.

Assessment Completed and IEP Developed(2) Within 50 Calendar Days of Receipt of
Parent's Written Consent for Assessment It Is Expected That a Student's IEP Will Be
Implemented

Immediately Following the IEP Meeting

Exceptions to the 50-day time limit would be (1) when the meetings occur during the summer or a
vacation period, or (2) where there are circumstances which require a short delay (for example,
working out transportation arrangements). However, there can be no undue delay in providing
special education and related services to the child.

If a parent does not consent to all the components of the IEP, then those components of the
program to which the parent has consented shall be implemented so not to delay providing special
education and related services to the child. [Cal. Ed. Code Sec. 56346(a).]

If the public education agency determines that the part of the proposed IEP to which the parent
does not consent is necessary to provide a free and appropriate education to the child, they shall
initiate a mediation conference or a due process hearing. While the mediation conference or due
process hearing is pending, the child shall remain in his or her then-current placement, unless the
parent and public education agency agree otherwise. [Cal Ed. Code Sec. 56346(b).]

The 15 calendar days do not include days between the pupil's regular school sessions or terms
or days of school vacation in excess of five school days from the date of receipt of the referral. If
a referral is made 10 days or less before the end of the regular school year or term, the school
district must develop an assessment plan within 10 days after the next school year or term begins.
[Cal. Ed. Code Sec. 56321.]

An individualized education program shall be developed within a total time not to exceed 50
days, not counting days between school sessions or terms or days of school vacation in excess of
five schooldays, from the date of receipt of the parent's written consent for assessment, unless the
parent agrees, in writing, to an extension. However, an individualized education program shall be
developed within 30 days after the commencement of the subsequent regular school year for each
student for whom a referral has been made 20 days or less prior to the end of the previous regular
school year. In the situation of an initial referral to special education made 20 days or less prior to
the end of the regular school year, the law does not begin counting the 50 days for assessment
and development of the IEP from the date of receipt of the parent's signed assessment plan but
rather from the earlierdate of the initial referral of the pupil to special education. [Cal. Ed. Code
Sec. 56344.]